Chazaka

Bava Batra (3:1) | Yisrael Bankier | a month ago

The third perek of Bava Batra opens by introducing the concept of a
chazaka in property. The Bartunera explains that if one was
witnessed using a property for three years, and the previous known owner
has not contested his presence, he is believed if he claims that he
purchased the property; even without any supporting documentation. The
Bartenura explains that one is only careful to retain their contracts
for three years. Furthermore, we tell the previous owner, that if the
field was indeed stolen, he should have objected to the presence of the
other party within the first three years. We shall try to understand
this logic.

The Gemara probes the basis of a chazaka. The Bartenura cited
Rava's conclusion that one is only careful to look after their
contracts for three years. While Rava's reason explains why the
current occupant cannot present proof of his acquisition, where do we
find support that he owns the property? Furthermore, the second answer
that the Bartenura brings (that the previous owner should have
objected during that time) was Rava's first answer that was rejected
by Abaye. Abaye argues that when considering a property of a certain
family who are sensitive if another simply walked through their field, a
chazaka should be established after the first uncontested use. This
however is not the case. Why then does the Bartunera cite this answer
as well?

The Rashba explains, that the two answers of Rava work together. In
other words, because the original owner was silent during the first
three years, it appears as though he was waiting until the purchaser
misplaced the contract of sale in order to contest the ownership of the
land. To be clear, the first answer of Rava is insufficient – the lack
of objection alone is not a proof of ownership. It is more that since
the objection was delayed until a time where one is no longer careful to
keep the contract, the claim is questionable.

The Rashba continues that by explaining that the three-year limit is
not arbitrary. It once again relates to the first answer. Initially, the
purchaser will be careful to store the contract safely in case the sale
is contested. It is only once he has lived there in peace for three
years, that he will no longer feel he needs to look after the contract.
This explains why the time required to establish a chazaka can vary
with how the field is used. For example, a field that is planted then
left fallow in alternating years, requires six years for a chazaka. He
explains that it would take that amount of time for the new owner to
feel comfortable that his presence will not be contested.

The Ritva however argues that Rava's first answer (that the original
owner did not contents the occupants use) should really be enough. He
explains that this should be similar to the law that one possessing a
movable object is proof of ownership. However, since land is generally
purchased with contracts, the fact the current occupant does not have
one when questioned within the first three years, weakens his claim of
ownership. He likens this to a case of a women who claims she was just
divorced but does not have a get.

The Ketzot HaChoshen (140:2) however reasons that this law is a
takanat Chachamim – rabbinic decree. In other words, since the
Chachamim realised that most people do not look after their documents
for more than three years, they implemented a time limit for one to
protest the presence of another in their property. Otherwise, if one
could protest beyond this time, it would have a devastating impacting on
genuine sales.

The Ketzot HaChoshen cites the Nimukei Yosef (14a) in support of his
position: "for more than [three years], one is not careful since they
think that the original owner will not protest… and this is according to
the general understanding, which is why the Chachamim instituted three
years. Furthermore, the Ketzot cites the Rambam who explains, "since
[the original owner] did not object [in the first three years he]
loses out." The Ketzot argues that if the reason was like the Ramban
(who maintains that same position as the Ritva above) the language of
"losing out" does not fit. Recall that the Ritva understands that the
occupant has a valid claim from the outset. Instead, it is more
appropriate when dealing with a rabbinically instituted time limit that
expired on the original owner. (See the Ketzot for a fuller discussion
including the opinion of the Tosfot.)